Hess v. Ryan, CV-06-1639-PHX-PGR (JI).
| Citation | 651 F.Supp.2d 1004 |
| Decision Date | 25 August 2009 |
| Docket Number | No. CV-06-1639-PHX-PGR (JI).,CV-06-1639-PHX-PGR (JI). |
| Parties | James Lee HESS, Petitioner, v. Charles L. RYAN, et al., Respondents. |
| Court | United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona |
v.
Charles L. RYAN, et al., Respondents.
Page 1005
COPYRIGHT MATERIAL OMITTED
Page 1006
COPYRIGHT MATERIAL OMITTED
Page 1007
COPYRIGHT MATERIAL OMITTED
Page 1008
James Lee Hess, Florence, AZ, pro se.
Page 1009
Michael Tighe O'Toole, Office of the Attorney General, Phoenix, AZ, for Respondents.
PAUL G. ROSENBLATT, District Judge.
Having reviewed de novo the thorough Report and Recommendation of Magistrate Judge Irwin in light of the petitioner's Objections to the Report and Recommendation Dated May 12, 2009 (doc. # 76) and Respondents' Response to Petitioner's Objection to Report and Recommendation (doc. # 77)1, the Court finds that the petitioner's objections should be overruled as being without merit and that the Magistrate Judge correctly determined that the petitioner's petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, should be denied.
The Court concludes that the Magistrate Judge correctly determined (1) that Grounds 3, 4, and 12 of the habeas petition are procedurally defaulted inasmuch as the petitioner, by failing to fairly present them to the state courts as federal issues, did not properly exhaust them and is now procedurally barred from doing so, (2) that Ground 11 was properly found by the state courts to be procedurally barred based on independent and adequate state law grounds, and (3) that these four claims must be dismissed with prejudice because petitioner has failed to demonstrate any cause or prejudice sufficient to excuse his defaults, and has failed to show the existence of any actual innocence sufficient to establish that a fundamental miscarriage of justice would result from the Court not reaching the merits of these claims.
The Court further concludes that the Magistrate Judge properly analyzed the merits of the petitioner's exhausted claims, Grounds 1, 2, 5, 6, 7, 8, 9, 10 and 13, and correctly determined that they must be dismissed as being factually and/or legally meritless. Therefore,
IT IS ORDERED that the petitioner's Motion for Leave to File Reply to Respondents' Response to Petitioner's Objection to Report and Recommendation (doc. # 78) is denied.
IT IS FURTHER ORDERED that the Magistrate Judge's Report and Recommendation (doc. # 71) is accepted and adopted by the Court.
IT IS FURTHER ORDERED that the petitioner's Petition for Writ of Habeas Corpus by a Person in State Custody Pursuant to 28 U.S.C. § 2254 is denied and that this action is dismissed in its entirety with prejudice. The Clerk of the Court shall enter judgment accordingly.
---------------
Notes:
1. While the petitioner has requested that he be allowed to file a reply to the respondent's response to his objections, the Court will not permit him to do so because Fed.R.Civ.P. 72(b)(2) does not authorize the filing of such a reply, see Cannon Partners, Ltd. v. Cape Cod Biolab Corp., 225 F.R.D. 247, 250 (N.D.Cal. 2003); Bradberry v. Schriro, 2009 WL 971298, at *1 (D.Ariz. April 8, 2009), and because the petitioner's proposed reply does not add anything significant to the several memoranda the petitioner has already filed.
---------------
On Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254
JAY R. IRWIN, United States Magistrate Judge.
Petitioner, presently incarcerated in the Arizona State Prison Complex at Tucson, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on June 28, 2006(# 1), and a supplemental memorandum on August 23, 2006(# 9). On October 13, 2006, Respondents filed their Answer (# 12). Petitioner filed a
Page 1010
Reply on October 5, 2007(#30). Subsequently, Respondents filed a first Supplemental Answer on March 12, 2008(#34) and a Second Supplemental Answer on September 9, 2008(#57). Petitioner has filed a first Supplemental Reply on June 3, 2008(# 45) and a Second Supplemental Reply on December 17, 2008(# 69).
The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
In this proceeding, Petitioner challenges his incarceration resulting from his conviction in Maricopa County Superior Court case number 88-10837, primarily on charges of armed robbery. (Petition # 1 at 1.) That conviction is intertwined with Petitioner's conviction in Maricopa County Superior Court case number 88-11481 on charges of sexual assault.1 Accordingly, the relevant procedural background for both convictions is addressed. Conversely, it is only the facts of the armed robbery case which are at issue, and so only those facts will be reviewed.
A. FACTUAL BACKGROUND
In disposing of Petitioner's original direct appeal, the Arizona Court of Appeals summarized the facts underlying the armed robbery convictions as follows:
Appellant's armed robbery convictions arose out of holdups of two Phoenix retail establishments, both involving lone female employees. A witness to the second robbery provided police with a description of the truck and its license number. Police engaged in a high-speed chase for fifteen minutes before abandoning pursuit. Vehicle registration confirmed that appellant was the truck's owner.
The police undertook surveillance at the appellant's address and followed as he and his girlfriend drove to a laundromat in the girlfriend's car. Police officers then arrested appellant inside the laundromat on a California fugitive warrant.
At the police station following appellant's arrest, the girlfriend consented to a search of her car. Police seized a backpack which the girlfriend advised them belonged to appellant and a writing tablet lying next to the backpack. Inside the backpack, officers found a bank bag containing $682. The top page of the writing tablet contained the following:
Store truck, [encircled] Get canopy for truck. Get paint job. Hair cut. Truck registration.
A detective testified that he later went to the jail to have appellant fingerprinted and to advise him of additional charges that were being filed. Appellant initiated a conversation in which he told the detective that he had hidden the money from the robberies under a bush after the chase.
(Exhibit D, Mem. Dec. 4/9/92 at 1-2.)
B. PROCEEDINGS AT TRIAL
On November 29, 1988, in Maricopa County case number 88-10837, Petitioner was indicted on three counts of armed
Page 1011
robbery, one count of unlawful flight, and one count of kidnaping. (Exhibit B, Opening Brief at 4.) Petitioner was convicted by a jury on two of the counts of armed robbery and one count of unlawful flight from law enforcement, and prior to sentencing pled no contest to one count of sexual assault. (Exhibit D, Memorandum Decision at 1; Exhibit A, M.E. 8/9/89.)
On December 20, 1988, Petitioner was charged in a separate indictment in Maricopa County case number 88-11481, the sexual assault case, with two counts of armed robbery and two counts of sexual assault. Petitioner eventually entered into a plea agreement whereby he pled guilty to one count of sexual assault. (Exhibit B, Opening Brief at 6.)
The sentencing in both cases occurred on October 27, 1989. (Id.) In case number 88-10837, Petitioner was sentenced to 14 years on one armed robbery count, and a concurrent two and one-half years on the unlawful flight count. He was sentenced to a consecutive 21 year term on the other armed robbery. (Exhibit A, Sentence 10/27/89.) In case number 88-11481, Petitioner received an aggravated sentence of 21 years on the sexual assault charge, to run consecutively to his 21 year sentence for armed robbery in case number 88-10837. (Exhibit B, Opening Brief at 7.)
C. PROCEEDINGS ON DIRECT APPEAL
Petitioner filed a consolidated appeal in both cases. In the armed robbery case, he challenged the denial of a motion to suppress and admission of statements to police in the armed robbery case, and the denial of a motion for directed verdict. In the sexual assault case, he challenged the voluntariness of Petitioner's plea in the sexual assault case. (Exhibit B, Opening Brief at i; Exhibit C, Supplemental Brief at i.) The Arizona Court of Appeals affirmed the convictions and sentences on April 9, 1992 (Exhibit D).
Petitioner filed a Motion for Reconsideration (Reply, # 30, Exhibit D), which was summarily denied on November 4, 1992 (id.).
Petitioner filed a Petition for Review by the Arizona Supreme Court, again attacking both convictions. (Exhibit E, PFR at 2-3.) That petition was summarily denied by an Order (Exhibit F) issued April 21, 1995.
Petitioner did not seek certiorari review.
D. PROCEEDINGS ON POST-CONVICTION RELIEF
On February 16, 1996, Petitioner filed a Notice of Post-Conviction Relief (Exhibit G), and on September 20, 1996, he filed his Pro Per Petition for Post Conviction Relief (Exhibit I). By an Order (Exhibit L) dated July 15, 1997 and filed July 17, 1997, the PCR court summarily dismissed the petition. The denial was based in part on the Court's intervening re-sentencing as a result of Petitioner's successful motion to withdraw his plea in the sexual assault case, #88-11481 (see Exhibit L at 1), as discussed hereinafter.
Although the caption of the PCR Notice referenced both cases, the caption of the PCR petition referenced only the armed robbery case, # 88-10837, and the prayer for relief sought only a "new trial." (Exhibit I at 59.) All further orders, petitions, etc. on this petition referenced only case number 88-10837. As discussed hereinafter, Petitioner simultaneously challenged case number 88-11481 through a successful Motion to Withdraw Plea (Exhibit H), resulting in...
To continue reading
Request your trial
-
Barten v. State Farm Mut. Auto. Ins. Co.
...not add anything significant to the briefing in this matter. As such, Defendant's Motion to File a Reply is denied. See Hess v. Ryan, 651 F.Supp.2d 1004, 1009, n. 1 (D.Ariz.2009). II. Standard of Review This Court “may accept, reject, or modify, in whole or in part, the findings or recommen......
-
Barten v. State Farm Mut. Auto. Ins. Co.
...not add anything significant to the briefing in this matter. As such, Defendant's Motion to File a Reply is denied. See Hess v. Ryan, 651 F.Supp.2d 1004, 1009, n. 1 (D.Ariz.2009).II. Standard of ReviewThis Court “may accept, reject, or modify, in whole or in part, the findings or recommenda......
-
Bucholtz v. Shinn
...at the conclusion of direct review after his resentencing. See Burton v. Stewart, 549 U.S. 147, 156-57 (2007), cited in Hess v. Ryan, 651 F.Supp.2d 1004, 1021 (D. Ariz. 2009); Hernandez v. Ryan, 2012 WL 2017776, at *6 (D. Ariz. May 1, 2012). See also Ferreira v. Secretary, Dep't of Corr., 4......
-
Bryant v. Taylor, Case No. CV416-077
...review, as opposed to direct appeal. Ferreira v. Secretary, Dept. of Corrections, 494 F.3d 1286, 1288 (11th Cir. 2007); Hess v. Ryan, 651 F. Supp. 2d 1004, 1021 (D. Ariz. 2009) (collecting cases).FED. HABEAS MANUAL § 9A:18 (May 2016) (emphasis added). 5. Note that there is a difference betw......